State Primary Election Laws

It is election primary season here in the United States. Iowa and New Hampshire have voted, and the South Carolina Republican primary took place this past Saturday, February 20th. The South Carolina Democratic primary will take place this coming Saturday, February 27th. As is often the case in the United States, each state has different laws governing that state’s primary or caucus. Primaries and caucuses are held not just for presidential candidates but for a host of other state offices from the county or municipal level up through national offices including congressional seats as well as the presidency. I thought it would be interesting to take a look at the laws in South Carolina and Nevada in order to explore election primaries in their various permutations.

First, a general note about the difference between primaries and caucuses. Primaries tend to look like general elections. They are scheduled for a certain day but can provide voting opportunities for absentee voters. There are ballots and voting booths and voter confidentially. Of course unlike general elections, some states have closed primaries which only allow voters registered in the party which is holding the primary to vote. Caucuses are physical meetings of voters by county, municipality or precinct within the state. They are scheduled for a specific day and time. Voting in a caucus is often done by voters raising their hands or breaking into groups for each candidate.

When I searched online for information on elections in South Carolina I was directed to the South Carolina Code, Title 7 Elections, Chapter 13 Conduct of Elections. The first section establishes the date for voting in the national election, the first Tuesday following the first Monday in November. The next section 7-13-15 establishes the second Tuesday in June as the date for voting in primaries for national, state and county offices. But wait, South Carolina just had a presidential primary, so what is this about June? As I read section 7-13-15 again, I noticed that subsection (B)(1) of 7-13-15 excludes “a presidential preference primary for the Office of President of the United States” from chapter 13 and directs me to section 7-11-20(B) of the South Carolina Code. I realized that for information on presidential primaries in South Carolina I need to look at Title 7, Chapter 11, Designation and Nomination of Candidates.

Section 7-11-20 is titled “Conduct of party conventions or party primary elections generally; presidential preference primaries.” Subsection (B) states that a certified political party may hold a “presidential primary preference election” in accordance with state law and party rules. Subsection (1) relates that the state party will set the date and hour that the polls will be open, though the party must give 90 days notice to the South Carolina State Election Commission of the date selected for the primary. The parties are also required to provide a written certification to the State Election Commission that verifies in a written statement the candidates listed on the ballot meet, or will meet by the time of the general election, all qualifications in the U.S. Constitution, statutory laws and party rules to be president. The actual primary elections are conducted by the South Carolina State Election Commission in each county.

This section also has various provisions regarding primary voters. Among other things, it provides that if a party chooses to hold the primary on a Saturday, they must provide absentee ballots to persons who sign an affirmation which states for religious reasons they do not want to vote on a Saturday. Subsection (B)(2) notes that a registered voter can only cast a ballot in one presidential preference primary. This means someone registered as a Democrat could vote in the Republican presidential preference primary, but they would not be able to vote in the Democratic presidential preference primary. South Carolina does not allow voters to register on the day of the primary or election. According to the State Election Commission website, South Carolina residents must register to vote at least 30 days before any type of election.

Dunklin County, Missouri. Voting in the primary election at the county courthouse, Photograph by Arthur Rothstein. (1942). Library of Congress Prints and Photographs Division, //hdl.loc.gov/loc.pnp/fsa.8d07549

As with South Carolina and its separate Republican and Democratic primaries, Nevada is having two separate caucuses, one for each major political party. The Democratic caucus was this past Saturday and the Republican caucus takes place tomorrow, Tuesday, February 23. Unlike the South Carolina primaries, the Nevada caucuses are closed which means that those participating must be registered voters with the party holding a caucus. Since my online searching for South Carolina law took me on a rather roundabout path to locate the relevant laws, I decided to refer to the print index to Michie’s Nevada Revised Statutes Annotated for the relevant Nevada laws. Initially I looked under the term “Elections” but many of the entries seemed to deal with general election issues, such as the electors for the presidential election. I decided to try entry term “Presidential” but as I was paging through the index I saw the term “Primary Elections.” This seemed to be what I wanted.

The index generally directed me to sections 293 and 293B of Title 24 of the Nevada Revised Statutes. I found there were a great number of entries under both section headings and returned to the print index to see if I could narrow the search, but the only entry under Presidential preference primary elections referred to absentee voting so I went back to reviewing section 293 for information. It quickly became clear that Nevada has a two tier system. First are the precinct meetings of registered voters. The county’s central committee of each major political party will set the date, time and place for the precinct voters of that party to meet (section 293.135). Nevada law requires each major political party “to have a precinct meeting held for each precinct. All persons registered in the party and residing in the precinct are entitled to attend the precinct meeting. Delegates to your party’s county convention will be elected at the meeting by those in attendance.” Subsection 293.137 provides details on the the precinct meetings. At an open and public meeting, all registered voters will elect the delegates to which the precinct is entitled for the county convention. In presidential election years the meeting also allows “the election of delegates may be a part of expressing preferences for candidates for the party’s nomination for President of the United States if the rules of the party permit such conduct.” The Nevada Secretary of State has a website with more detailed information about how the meetings are to be run as well as the dates and times for this year’s primary precinct meetings.

Section 293.140 of the Nevada Revised Statutes covers the law governing the party’s county conventions which elects the delegates to the party’s state convention and also elects members to the party’s central committee. Most of the work at the precinct and county meetings is done by the state political parties, not by a state agency. There is a great deal more information in section 293 of the Nevada Revised Statues including information on party registration, minor political parties, filling vacancies in an office, declaration of candidacies and related information. If you would like to look up the general election or primary election laws in your state, or the laws governing voter registration, I would recommend beginning with the Law Library’s Guide to Law Online for U.S. States & Territories. Select your state from the list. Your state’s code, the subject organization of your state’s laws, will appear under the Legislative resources header for that page.

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